CITATION: West Nipissing Police Services Board v. Municipality of West Nipissing, 2018 ONSC 6454
DIVISIONAL COURT FILE NO.: 1086-18 (Sudbury)
DATE: 20181114
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
ARRELL, R.S.J., MULLIGAN and MATHESON JJ.
BETWEEN:
WEST NIPISSING POLICE SERVICES BOARD
Applicant
– and –
MUNICIPALITY OF WEST NIPISSING (COUNCIL FOR THE MUNICIPALITY OF WEST NIPISSING)
Respondent
Joël M. Dubois and Jessica Barrow, for the Applicant
Michael F. Sirdevan, for the Respondent
HEARD at Sudbury: October 10, 2018
REASONS FOR DECISION
THE COURT:
[1] The applicant is the West Nipissing Police Services Board, which is responsible for the local police services in the Municipality of West Nipissing. The Municipality passed Motion 2017/84 (the “Decision”) adopting By-law 2017/85 (the “By-law”) on December 5, 2017. The By-law accepted an Ontario Provincial Police (“OPP”) Contract Policing Proposal to take over the policing functions for the Municipality, replacing the local police force.
[2] The applicant Board brings this application for judicial review seeking an order quashing the Decision and the By-law for a number of reasons mainly focused on the consultation process that was used by the Municipality, as compared to earlier consultations regarding the possibility of switching to the OPP.
[3] The By-law is currently stayed by order of Kirk J. pending a decision by this Court.
FACTS:
[4] The Municipality, in its current form, was created on January 1, 1999, when various towns and townships, including Sturgeon Falls, amalgamated to form a new municipality. The Municipality has a population of approximately 14,000 people. The majority of the population identify their first language as French, 620 residents identify as being only French speaking and 2,000 people identify as indigenous.
[5] The local police force has existed in some form since about 1900. With the amalgamation in 1998/1999, the local police force was renamed and took over the policing for the new regional municipality.
[6] Prior to 1999, the areas that became the Municipality, except for Sturgeon Falls, were policed by the OPP. At the time of amalgamation in 1998/1999, the Municipality went through an OPP costing process. It went through another process in 2012/2013. On both occasions, the Municipality decided to keep the local police force. Those decisions were not challenged.
[7] The 1998/1999 OPP costing process took place over approximately one year. There was a transition board made up of representatives of the various municipalities and townships that later amalgamated to form the Municipality. Public meetings were held in each of the eight municipal wards during that transition period. It is unknown whether those public meetings were held to discuss policing or amalgamation as a whole or both.
[8] Ultimately it was decided that the newly formed amalgamated municipality would make the final decision with respect to policing in the Municipality. There were further consultations and a survey was taken of local business owners, schools, and various service providers to obtain their input. In June of 1999, Council voted in favour of keeping and expanding the local policing to the whole new amalgamated municipality.
[9] During the 2012/2013 OPP costing process, a steering committee was struck, comprised of the local Chief of Police, a Board services member, a municipal councillor, municipal staff, a representative of the local police association and a police services advisor. The steering committee met on two or three occasions and provided input to the OPP to assist it in its costing proposal.
[10] In the 2012/2013 process, public meetings were held in three communities within the Municipality, with a total of 278 people attending the meetings. These public meetings were not televised, nor was the Internet or social media used in either the 1998/1999 or 2012/2013 consultation process.
[11] In October 2016, the Chief Administrative Officer of the Municipality advised the Municipal Council that the OPP had initiated a new costing method for policing municipalities such as West Nipissing. Council decided to request a new costing proposal from the OPP for its consideration. That request was made to the OPP in the fall of 2016.
[12] The material accumulated in the consultations about the two prior OPP costing proposals was available to the Municipality for this OPP costing process.
[13] On May 23, 2017, the Board wrote to the Mayor requesting an opportunity to speak with Council regarding the OPP costing process prior to further steps being taken. The Board indicated that the local police service provided high caliber services at a reasonable price and questioned the savings that could arise from an OPP proposal. On May 29, 2017, the Mayor responded by letter, thanking the Board for its dedication to the local police service and indicating that once the OPP proposal was presented to Council, the Council would receive deputations from interested parties. The Board could and ultimately did make its submissions at that time.
[14] On November 14, 2017, the OPP presented their costing proposal to the Municipality and the Treasurer of the Municipality presented her financial analysis of that proposal.
[15] A public meeting regarding the OPP proposal was held in Sturgeon Falls on November 22, 2017. The public meeting was promoted throughout the Municipality on posters in municipal offices, libraries and other public locations, as well as ads on the local radio stations. It was also promoted on the Municipality’s website, Facebook page and Twitter feed.
[16] Approximately 90 members of the community attended the public meeting. In addition, the public meeting was broadcast live on the local cable TV, was live streamed online, and was filmed and made available on YouTube.
[17] The OPP costing proposal was presented at the public meeting, as was the financial analysis by the Treasurer that was given to the Municipality. Two hours were set aside for questions from the public, which the OPP and staff answered. Council members were present for this meeting to observe and gain input.
[18] Representatives of the OPP were present at the public meeting along with municipal staff, the Chief of Police, and the Chair of the Police Services Board, as well as the Mayor and members of Council. The role of the Chair of the Board and the Chief of Police was limited to answering questions.
[19] Following the public meeting, the OPP proposal and the Municipality’s financial analysis were posted to the Municipality’s website for the public to review. As well, paper copies of the OPP costing proposal and the Municipality’s financial analysis were distributed to all municipal facilities and libraries for the public’s access.
[20] The Municipality established a dedicated email address, which was posted on the Municipality’s website, to allow further questions to be asked by members of the public. Answers to those questions, from the Municipality staff, were posted online as well. Council was provided with the information regarding the questions asked, along with the answers posted to the website, prior to its consideration of the By-law on December 5, 2017. The record before us indicates that the vast majority of the questions were answered by staff online before that meeting.
[21] Council met on December 5, 2017. Council heard from the Board at that meeting. The Board’s presentation raised concerns about the OPP proposal, and presented the results of a survey undertaken on behalf of the local police service by a surveying firm. The Board was given the usual 15 minute time period given for deputations.
[22] After debating the resolution, the Council voted 6:2 in favour of switching to the OPP.
[23] One of the councillors who participated in the vote had a son who was a current member of the OPP and another had a son-in-law with the OPP. Those councillors had received a legal opinion that they did not have a conflict on this issue. In 2013, the councillor with a son who was a member of the OPP had decided he had a conflict of interest and did not vote, without legal advice.
[24] The Municipality received a petition early in 2018 with 1,504 names on it requesting that there be a referendum on the OPP proposal at the next municipal election. The Municipality voted not to do so.
[25] Under s. 40 of the Police Services Act, R.S.O. 1990, c. P-15, the Municipality also required the consent of the Ontario Civilian Police Commission (the “OCPC”) in order to disband the local police service. Ordinarily, the Board would bring that application but it declined to do so. The Municipality therefore submitted the application and all necessary information to the OCPC. The Board opposed the application before the OCPC on grounds of lack of procedural fairness and bias.
[26] The OCPC completed its assessment and, on August 29, 2018, approved the disbandment request and the By-law. The OCPC stated that it was satisfied that adequate and effective police service would continue to be provided to the residents of West Nipissing under the OPP proposal.
[27] Consistent with the OCPC’s conclusion, in the evidence before this Court, the local Chief of Police and the Board Chair have both acknowledged that they have no reason to believe that the OPP cannot provide adequate and effective policing for the Municipality. As well, the President of the West Nipissing Police Association supports the Municipality’s plan to contract with the OPP.
ISSUES:
[28] In this application for judicial review, the Board challenges the process used by the Municipality giving rise to the Decision and the By-law, arguing that both should be quashed for want of fulfilling the requirements of procedural fairness. The application raises the following issues:
(1) what duty of procedural fairness is owed by the Municipality in this process;
(2) the impact of the doctrine of legitimate expectations on that duty, if any;
(3) whether the Municipality violated its duty of procedural fairness in this case; and,
(4) whether the Decision and By-law are tainted by bias or bad faith.
[29] As a preliminary matter, the Municipality raises the issue of whether the Board has standing to bring this application for judicial review.
STANDING
[30] The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, does not define who may bring an application for judicial review. Further, under s. 273 (1) of the Municipal Act, 2001, S.O. 2001, c. 25, any “person” may bring an application to quash a municipal by-law. The Municipal Act, 2001, does not confine the definition of “person”, only providing the definition in s. 1 that “person” includes a municipality unless the context otherwise requires. In Galganov v. Russell (Township), 2012 ONCA 409, 350 D.L.R. (4th) 645, at para. 15, the Court of Appeal held that “[t]he words "any person" in s. 273(1) of the [Municipal Act] mean "any person who has standing under the common law relating to standing.”
[31] We therefore conclude that the common law of standing applies. In that regard, the Board submits that it has both private interest standing and public interest standing to bring this application of judicial review.
[32] An individual can seek private interest standing if he or she can demonstrate an interference with a private right or can show that he or she has suffered special damages from the interference with a public right: Finlay v. Canada (Minister of Finance), 1986 6 (SCC), [1986] 2 S.C.R. 607, at p. 15. As well, the individual must demonstrate that there is a causal relationship between the alleged prejudice suffered and the administrative action that is challenged: Finlay, at p. 21.
[33] The applicant Board is a statutory body formed pursuant to the Police Services Act. Section 27 of the Act provides that a board must be established for every municipality that maintains a police force. That board is responsible for the provision of adequate and effective police service in the municipality. Among other things, the Board appoints the Chief of Police and other members of the police force, and has oversight functions.
[34] Section 31 of the Act sets out the responsibilities of a police services board. It is agreed that s. 31 does not provide any express responsibility on the Board for challenging policing decisions made by a municipal council.
[35] The Board submits that its private interest standing stems from the fact that its existence is threatened by the By-law because if there is no local police force there is no requirement that there be a Board. The Board also asserts its role as the employer of the members of the local police service.
[36] The Respondent notes that there will still need to be a Board in the future, and that the members of the local police may well be hired by the OPP or otherwise have been assured proper termination packages through the OCPC process.
[37] We do not find that the Board has private interest standing. The need for a Board arises solely from the Act and any cessation of the Board flows from the Act. The Board has no private right or interest in this case. Further, we do not find that the Board has a private right or interest to assert the employment interests of its employees nor to seek special damages.
[38] With respect to public interest standing, the Court must consider three factors in exercising its discretion to grant standing: (1) whether there is a serious justiciable issue raised; (2) whether the Board has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the application is a reasonable and effective way to bring the issue before the courts: Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45, [2012] 2 S.C.R. 524, at para. 37. When considering the last factor, courts should recognize whether the proposed action is an economical use of judicial resources, whether the issues are suitable for judicial determination in an adversarial setting and whether permitting the proposed action will uphold the principle of legality: Downtown Eastside, at para. 50.
[39] The Board submits that it has public interest standing because of its mandate to ensure that policing services meet community standards. It submits that it ought to be given standing because it is asking the Court to determine whether Council complied with the rules of procedural fairness and acted in good faith, which accords with its duties by ensuring that decisions about adequate and effective policing are made fairly.
[40] We are prepared to exercise our discretion to grant the Police Services Board public interest standing, with one exception. Generally, the issues raised are matters of fairness and the Board has demonstrated a genuine interest in them in the context of policing within the community. The Board’s application is a reasonable and effective way to bring the issues before the Court. The exception is the duty to consult the indigenous community. The Board made a cursory reference to that duty in its factum, and did not focus on it in oral argument. The Police Services Board has not demonstrated that it should be allowed to speak for indigenous peoples or assert their rights.
STANDARD OF REVIEW
[41] For issues of procedural fairness, it is not necessary to engage in a standard of review analysis. The issues are the scope of the duty of procedural fairness in this case and whether that duty was fulfilled.
PROCEDURAL FAIRNESS/LEGITIMATE EXPECTATIONS
[42] The parties agree that the Council did have a duty of procedural fairness. It is the content of that duty that is the main dispute, especially because of the legislative nature of the Decision at issue.
[43] The parties also agree that the starting point for the determination of the content of the duty is Baker v. Canada (Minister of Citizenship & Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 21-28, where the Supreme Court set out factors to be considered in determining the content of the duty in any particular case. As set out in Baker, some or all of the following factors are relevant:
(1) the nature of the decision and the decision process followed;
(2) the statutory scheme pursuant to which the body operates;
(3) the importance of the decision to the individual affected;
(4) the legitimate expectations of the person challenging the decision; and
(5) the nature of deference accorded to the administrative body.
[44] This list is not exhaustive. The content of the duty is driven by the particular circumstances of each case: Baker, at para. 28.
[45] The nature of the decision is an important factor in this case. The decision to pass the motion was a legislative one. This suggests that a lower level of procedural fairness would apply to the process leading up to the legislative decision made by the Municipality. Generally, municipalities are accountable to their constituents, not to the courts: Friends of Landsdowne Inc. v. Ottawa (City), 2012 ONCA 273, 110 O.R. (3d) 1, at para. 15.
[46] Further, “the review of municipal bylaws must reflect the broad discretion provincial legislators have traditionally accorded to municipalities engaged in delegated legislation. Municipal councillors passing bylaws fulfill a task that affects their community as a whole and is legislative rather than adjudicative in nature”: Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 19.
[47] The statutory context also supports a limited content for this duty. Absent illegality, municipal by-laws are well insulated from judicial review: Friends of Landsdowne, at para. 13. Section 272 of the Municipal Act, 2001 prohibits the review of a by-law passed in good faith “in whole or in part by any court because of the unreasonableness or supposed unreasonableness of the by-law”. Thus, considering the deference factor, a by-law cannot be reviewed even if it unreasonable. This is a more deferential approach than that ordinarily applies to many types of decisions.
[48] The importance of the issue to the Board is a factor that is not a good fit in this case. As stated above, the Board does not have a private interest in this case. To the extent that the Board is relying on its community representation, it is focused on the policing community as admitted in the evidence before us, not the broader community. However, we have assumed that there is a significant interest at stake here.
[49] Overall, the above context suggests that a high level of procedural fairness is not required in this legislative process.
[50] The Board relies on the doctrine of legitimate expectations to support the steps that it submits should have, yet were not, taken. Legitimate expectations form part of the Baker test and can give rise to higher procedural fairness obligations.
[51] The doctrine of legitimate expectations has these required elements, as summarized in Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68:
(i) a government official must make representations within the scope of his or her authority to an individual about an administrative process that the government will follow;
(ii) the representations said to give rise to the legitimate expectations must be clear, unambiguous and unqualified; and,
(iii) the representations must be procedural in nature and not conflict with the decision maker’s statutory duty.
However, proof of reliance is not required.
[52] The representations may take the form of promises or regular practices of the decision-making body: Baker, at para. 26. However, the representations must be sufficiently precise that if they had been made in the private law context, they would be certain enough to be capable of enforcement: Mavi, at para. 69.
[53] The Municipality challenges the proposition that the Board is capable of having legitimate expectations at all. However, for the purposes of this application we have assumed that it is.
[54] The Board submits that it had legitimate expectations that the process followed in the prior consultations would be followed again in 2016/2017. To begin with, the Board relies on certain guidelines that it submits were previously followed. Both the Ontario Association of Chiefs of Police (the “OACP”) and the OPP had guidelines for municipalities that were considering alternative policing services. Both guidelines contemplated that a committee be established including representation from both the Board and the local police, among others. Although these guidelines are not themselves representations from the Municipality, there were committees in the prior consultations. The Board submits that it legitimately expected that to occur again. It is, however, difficult to see how that limited past practice gives rise to a “clear, unambiguous and unqualified” representation by the Municipality.
[55] The Board further relies on the fact that in the prior two consultations there were multiple public meetings in different locations. The 1999 process was very different in that it took place in the course of a significant process of consolidating a group of municipalities into one, and it is therefore not really comparable. In 2012/2013 there were three public meetings in different locations rather than one, however this is also a single prior instance rather than a clear, unambiguous and unqualified past practice.
[56] Moreover, the reach of the public consultation cannot be measured solely on the basis of the number of or location of meetings. In the 2016/2017 process, the in-person meeting was supplemented by the use of cable TV and YouTube, making it possible for a wider audience to effectively attend the meeting without needing to attend in person. There was also a significant use of the Internet and social media to make information available and provide a forum for questions and answers from members of the public.
[57] The Board submits more generally that it expected a greater role because it was more involved in the earlier processes. However, this falls well short of what would be required to demonstrate a clear, unambiguous and unqualified representation by the Municipality. In addition, the 2016/2017 process had the benefit of the consultation done at those earlier processes.
[58] The Board also relies on By-law 2002/33 to submit that there was a legitimate expectation that the proceedings would be fully bilingual, even though that had not been done in the prior consultations. The Municipality’s documentary materials were not translated into French for any of the three cost proposal consultations over the years. In the 2016/2017 consultation, the OPP had offered to do its presentation in French as well as English but was not asked to do so. However, some questions were asked in French and those questions were answered in French by either the OPP or Municipality staff. As well, the public notices were in French and English.
[59] The Municipality had in place By-law 2002/33, which set out aspirational goals and objectives of the Municipality regarding bilingualism, during the 2016/2017 process. That by-law had no mandatory provisions and in turn did not require that all Municipal written material, or activities, be in both official languages. Although it expresses a positive objective, it falls short of being a clear, unambiguous and unqualified representation giving rise to more procedural rights in the consultation process than those that were provided in this case.
[60] We conclude that the process followed in 2016/2017 was sufficient for this legislative decision. The Municipality made available information about the proposal to the public, both in print and online, gave notice of the public meeting, which was widely advertised including online, held a public meeting at which questions could be asked and answered, broadcast that meeting broadly using cable TV, live streaming and the Internet, had an ongoing online means to ask questions and obtain answers and provided an opportunity for deputations, including from the Board. The Council received the Board’s view from that presentation along with a survey that the police service had commissioned. Bearing in mind all relevant factors, we conclude that there was no breach of procedural fairness in the consultation process.
BIAS/BAD FAITH
[61] There remain the issues of bias and bad faith. The Board submits that four of the six councillors who voted in favour of the By-law were biased in favour of the OPP. According to the Board, two councillors were biased because of family relationships, while two others were biased because of a “well-established animus towards [the Chief of Police]”. The Board submits that these councillors were therefore disqualified from participating in the vote. The Board also argues that the Council generally had already “closed its mind” to reasonable objections raised by stakeholders.
[62] The Municipal Conflict of Interest Act, R.S.O. 1990, c. M. 50, sets out some circumstances in which a councillor is required to disclose a conflict and not participate in a vote, and is focused on pecuniary interests. Under s. 5, a member of Council must disclose a conflict and not vote if he or she has any pecuniary interest, direct or indirect, in any matter and is present at a meeting of the council at which the matter is the subject of consideration. That detailed regime includes consideration of the pecuniary interests of family members. No direct or indirect pecuniary interest, as that is defined in s. 2, has been established in this case.
[63] Further, to show bias more generally, we find that it is insufficient in this case to simply say that a son or son-in-law already employed by the OPP may be able to move to the Municipality.
[64] The Board has also not established the alleged animus toward the Chief of Police, nor that two of the councillors were motivated by animus, and it is the Board’s onus to do so.
[65] On the subject of bad faith, the Board essentially relies on the same allegations as found the procedural fairness argument. The Board submits that the Council, through its process, avoided input from policing stakeholders, avoided consultation with the public and ignored the survey and the petition (even though the petition was not submitted until after the Decision was made) and more generally had a closed mind.
[66] The onus to prove bad faith is high and requires evidence that the Council acted other than in the public interest: Municipal Parking Corporation v. Toronto (City of) (2009), 2009 65385 (ON SC), 314 D.L.R. (4th) 642 (Ont. S.C.), at para. 24. Bad faith has not been established by the Board in this case.
ORDERS
[67] The Board is granted public interest standing to bring this application.
[68] This application is dismissed.
[69] The stay granted by Kirk J. shall terminate 30 days from today, subject to further order of the court.
[70] If the parties are unable to agree on costs, they shall make their costs submissions in writing as follows: the Respondent shall deliver brief written submissions (up to 5 pages, double-spaced) plus a costs outline by November 30, 2018 and the Board shall deliver brief written responding submissions (up to 5 pages, double-spaced) by December 12, 2018. Any reply (up to 2 pages, double-spaced) shall be delivered by December 17, 2018.
___________________________ Arrell R.S.J.
Mulligan J.
Matheson J.
Date of Release:
CITATION: West Nipissing Police Services Board v. Municipality of West Nipissing 2018 ONSC 6454
DIVISIONAL COURT FILE NO.: 1086-18 (Sudbury)
DATE: 20181114
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ARRELL, R.S.J., MULLIGAN and MATHESON JJ.
BETWEEN:
WEST NIPISSING POLICE SERVICES BOARD
Applicant
– and –
MUNICIPALITY OF WEST NIPISSING (COUNCIL FOR THE MINICIPALITY OF WEST NIPISSING)
Respondent
REASONS FOR DECISION
Date of Release: November 14, 2018